If an employer hires an illegal, does the employer lose the exclusive remedy provision under work comp? A recent decision “New York Hospital Medical Center of Queens v Microtech Contracting Corp (2014 NY Sliup Op 00897) 2/13/14” says No. The case concluded that the employer may avoid contribution in a negligence case notwithstanding that the employee is an undocumented alien.
Illegal Workers Are Treated Same As Documented Workers in Work Comp
The court referred to this as “the other side of the coin”. This means that work comp benefits are not avoided because the employee is an illegal, thus, neither is the exclusive remedy.
It may seem, at first, this is a new extension of law and illegal workers but, in fact, these issues were thrashed out in NY more than 90 years ago. When the comp law was first passed, in 1914, employers tried every means of avoiding comp liability. There were two popular approaches. One was to allege that the employee obtained the job through fraudulent concealment of immigration status. The other was that the employer/employee relationship was inherently an illegal contract and, therefore, rights under it were unenforceable. Neither argument succeeded.
The rationale, then and now, was that the worker was in fact facing the risks of the workplace and, therefore, was entitled to work comp. Similarly, such a worker was not permitted to sue the employer for negligence.
Great Discoveries Can Be Made From History
This principal is, in NY, old – very old – but seemingly forgotten. This raises another point. Most of the comp arguments that seem to be so new have, in fact, been answered nearly a century ago. (The present comp law will be 100 years old on 7/1/14.)
A famous paleontologist, Donald Baird, once said that the great discoveries of the future will be made in the basements of museums, meaning that there was more material collected than there was time to analyze it. The same holds true of court decisions.
Employers should be aware that they have far more rights than they imagine. Far more than even the comp boards imagine. So get assistance from someone who, like Don Baird, enjoys digging through the old material, now on a computer and no longer on a basement shelf.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. firstname.lastname@example.org
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